Today the Supreme Court issued one decision,
described below, of interest to the business community.
CBOCS West, Inc. v. Humphries, No. 06-1431 (previously discussed in
September 25, 2007 Docket Report).
The Supreme Court today held that 42 U.S.C. § 1981—a Civil War-era statute
commonly used in tandem with Title VII as the basis for race discrimination
claims in the workplace—contains an implied cause of action for retaliation.
Because the text of § 1981, which protects the rights of non-whites “to make and
enforce contracts,” provides an implied basis for challenging employers’
decisions to terminate, demote, or otherwise discipline employees as a pretext
for race-based retaliation, this decision affects virtually all employers,
including small businesses not covered by Title VII. Although the Court’s
decision does not substantially change preexisting law, it does solidify a right
that had already been recognized by a “broad consensus” of the federal circuit
courts (Slip op., at 7). Businesses nationwide will thus continue to be exposed
to retaliation claims brought by employees claiming that they were improperly
disciplined because they reported or complained about racial discrimination.
Those claims are not subject to Title VII’s restrictions, including the
obligation to seek administrative relief before filing suit or the cap on
potential damages, and they have a much longer limitations period of four years.
Plaintiff Humphries, an African-American man, was an assistant manager at a
Cracker Barrel restaurant. After Cracker Barrel terminated Humphries, he sued
under 42 U.S.C. § 1981, alleging that the termination was in retaliation for
having complained a week earlier that his direct supervisor unlawfully
discriminated against him and another African-American assistant manager. The
district court granted summary judgment to Cracker Barrel on Humphries’
retaliation claim, but the US Court of Appeals for the Seventh Circuit reversed
and remanded the case for trial. The Supreme Court affirmed the Seventh
Circuit’s decision, confirming—by a vote of seven to two—that § 1981 provides a
cause of action for retaliation for reporting or seeking to protect others from
In reaching its decision, the Court noted that it had already recognized the
right to sue for retaliation under 42 U.S.C. § 1982, which protects the rights
of non-whites to own property. Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) (interpreting Sullivan v. Little Hunting Park,
Inc., 396 U.S. 229 (1969)). The Court then extended that rule to Humphries’
§ 1981 suit, noting that it has historically interpreted § 1981 and
§ 1982 similarly—not only because of a close textual similarity, but also
because they share a common origin and purpose. (Congress enacted both
provisions as part of the Civil Rights Act of 1866, which was an effort to
guarantee equal rights to newly freed slaves.) The Court also invoked the
doctrine of stare decisis, referring to a “long line of related cases”
in which it had interpreted the two statutes similarly. Slip op., at 8. The
Court ultimately concluded that the notion that § 1981 contains a right to sue
for retaliation is “well embedded in the law.” Id.
Justice Thomas filed a dissenting opinion, joined by Justice Scalia, in which
he criticized the majority for “return[ing] this Court to the days in which it
created remedies out of whole cloth to effectuate its vision of congressional
purpose.” Slip op., at 17.